Wellington Standards Committee 1 v King [2024] NZLCDT 46 (18 December 2024)

Last Updated: 31 December 2024

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

[2024] NZLCDT 46 LCDT 010/24

IN THE MATTER of the Lawyers and Conveyancers Act 2006

BETWEEN WELLINGTON STANDARDS COMMITTEE 1

Applicant

AND JUSTINE MARY KING

Practitioner

CHAIR

Ms D Clarkson

MEMBERS OF TRIBUNAL

Mr I Hunt

Ms G Phipps Mr K Raureti Dr D Tulloch

HEARING 20 November 2024

HELD AT District Court, Wellington

DATE OF DECISION 18 December 2024

COUNSEL

Ms N Town for the Standards Committee

No appearance for the Respondent Practitioner

REASONS FOR ORDERS MADE ON 26 NOVEMBER 2024

Liability and penalty hearing

[1] Any lawyer who does not engage with his or her professional and disciplinary bodies does himself or herself a great disservice.

[2] Despite being given repeated further opportunities to properly inform the Tribunal about her situation, Ms King did not appear at the adjourned hearing1 and she had not complied with directions to file evidence, after the first hearing was adjourned at her request, nor did she engage counsel as promised.

[3] Ms King agreed, at the first hearing before us in October 2024, that she was being “an ostrich” about the three charges which she faced.

[4] On the evidence provided by the Standards Committee and following submissions, we found that the Standards Committee had established liability at the level of negligence or incompetence2 in respect of Charges 1 and 3. Further, we found misconduct3 had been established in respect of Charge 2.

[5] Having reached a view as to proportionate consequent orders, we made those on 26 November 2024 and reserved our reasons. This decision gives those reasons.

Why we found misconduct on Charge 2

[6] This Charge arises from a complaint made by Mr H whom Ms King had represented while acting for him in a dispute between guardians in 2022. When he

1 Ms King said in an email to the Tribunal registry, on the morning of the November hearing that she was unwell but did not provide supporting medical evidence. Having filed no documents as earlier directed, meaning that the Tribunal’s information had not been advanced from the first hearing date, we were not prepared to delay the matter further.

2 Section 241(c) Lawyers and Conveyancers Act 2006.

3 Section 7(1)(a)(ii).

instructed Ms King, Mr H had an existing legal aid grant for another parenting matter in the Family Court. Mr H understood that that grant would cover the guardianship dispute.

[7] Ms King did not take any steps to clarify the position concerning legal aid extending to the guardianship dispute, or advise Mr H about the potential risks involved in adopting the proposed position that he held on the matter,4 if he did not have legal aid cover. Furthermore, Ms King did not provide Mr H with an engagement letter, which might have drawn Ms King and Mr H’s attention to the legal aid issue.

[8] Ms King litigated the guardianship dispute in a manner that exposed Mr H to an increased risk of costs. That is because the Court had set out in clear terms, in Minutes directed to the parties, the position it was likely to take on the dispute in the light of the position of the Ministry of Health. The Court indicated that it would require an evidence- based reason to depart from that advice in relation to this particular child.

[9] The second Minute warned of costs, were the parties to be “unnecessarily obstructive”.

[10] Despite these warnings, Ms King filed submissions advancing her personal opinions and challenging the Ministry of Health’s position without, in the Court’s view, “any actual satisfactory medical evidence”.

[11] At the substantive hearing in August 2022, Ms King told the Court that Mr H had applied for legal aid. That was incorrect because no application had ever been filed to extend the legal aid grant to the new dispute.

[12] Following the Court’s determination which was against Mr H’s position, his former partner applied for indemnity costs. Ms King did not inform Mr H of that application or seek his instructions on how to respond to it.

[13] Nor did she advise Mr H that he may have a claim against her, given her failure to advise him of the risk of a costs award being made against him.

4 Which related to whether consent should be given to a COVID-19 vaccine.

[14] Instead, Ms King filed submissions opposing costs and repeating some of the submissions which had been previously unsuccessful.

[15] In November 2022, Ms King received a copy of the costs decision which awarded $8,786 against Mr H.

[16] To make matters worse, Ms King did not inform Mr H of the outcome and he was unaware of it until his former partner contacted him seeking payment. When Mr H questioned Ms King, she did not provide any satisfactory response. Instead, in February 2023, she made application for a rehearing, which the Court described as “essentially targeted at relitigating the substantive matter, which is completely inappropriate and raises issues around breach of process”. Ms King did not have Mr H’s instructions to make such an application.

[17] The imposition of the costs order caused serious difficulties to the client, Mr H. He suffered the humiliation of being served a summons by the bailiff. He was confused by legal aid not having been granted for this dispute, given that Ms King had told the Family Court judge in Court that an application for it had been filed that morning. Had there been a proper approved legal aid grant, he would not have been liable for such a costs order.

[18] We accept the Standards Committee submission that “...Ms King’s conduct in respect of these proceedings was seriously flawed” and that “at the outset of the retainer, Ms King needed to address the litigation risks involved in opposing the application. This required clear advice around the potential for costs and how a legal aid grant would affect this”.

[19] We also accept the submission that “the failure to address the risks involved in the litigation was exacerbated by the subsequent decision to advance the matter in a manner that disregarded the Court’s direction” and that to advance it in such a manner required clear instructions from her client, he having first been advised as to the risks in relation to costs.

[20] Without any explanation from Ms King, we are left with the evidence that she misled the Court concerning the legal aid application. That is a serious act in itself.

[21] We consider that, viewed overall, Ms King’s actions and failures in acting for Mr H would be regarded by lawyers of good standing as disgraceful or dishonourable.

[22] In addition, as submitted by Ms Town, Ms King can be seen to have breached a number of the Conduct and Client Care Rules.5

[23] She breached her duty of honesty and fidelity to the Court (r 13.1).

[24] Ms King also breached r 13.3 by failing to obtain her client’s instructions on significant decisions in respect of litigation. She also breached her obligations to promptly disclose information to Mr H, pursuant to rr 7 and 7.1.

[25] In not providing a letter of engagement, Ms King breached r 3.4. At the more serious end of the scale, once Ms King knew that costs had been ordered against her client and that this may have occurred because of her actions or inactions, she ought to have advised him that he may have a claim against her. In failing to do so, she has breached r 5.11.

[26] While these breaches may not have been wilful, they can certainly be seen as a reckless disregard of her specific professional obligations as set out in the Rules. This also would provide a basis for a finding of misconduct.6

How the own motion investigation revealed negligence or incompetence

[27] The Standards Committee began an own motion investigation (OMI) arising from concerns about Ms King’s approach to practice in relation to a separate complaint. Ms J Cheer was appointed as an investigator by the Committee to review Ms King’s practice and to assess whether she was compliant with the Rules.

[28] Ms Cheer’s report identified a number of fundamental problems in Ms King’s practice. Although she had very few clients, she appeared to have no clear systems for dealing with correspondence, particularly email and its proper filing. She also did not have precedent documents to assist her in drafting. Of the existing 16 files, 10 clients had not been sent a letter of engagement. The manner in which conflict checks were carried out was also deficient and posed risks.

5 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules).

6 Section 7(1)(a)(ii) Lawyers and Conveyancers Act 2006.

[29] The management of her diary was also flawed and Ms King acknowledged that she sometimes missed court dates for filing and needed to seek extensions of time.

[30] In addition, there were concerns about privacy because her printing facilities were shared with another organisation, and she did not always ensure she collected printing as soon as it was completed, meaning that it was not protected from inadvertent disclosure.

[31] Ms King has told the Standards Committee and the Tribunal that she suffers from a serious sinus condition which has had a very bad effect on her ability to work and manage generally. Furthermore, she seems to have little or no collegial support, apart from one senior lawyer for whom she used to work but who is in another centre.

[32] Once again, we were hampered by the absence of evidence from Ms King herself about the concerns which had been raised in Ms Cheer’s report, which Ms Cheer regarded as serious. From the report and description of the over four hours of meeting with Ms King by Ms Cheer, we formed the impression that this was a sole practitioner entirely out of her depth and who, without some guidance, could put clients’ interests seriously at risk, such as occurred with the H complaint described above. However it is the risk to clients that supersede all other interests including that of their lawyer. Whatever her struggles, her duty was to seek assistance to avoid risk to her clients.

[33] Ms King only has 16 active files but she is struggling even with these7.

[34] Because the concerns about lack of management in her practice and failure to provide letters of engagement are at the lower end of the scale, we were not prepared to find her conduct to have been at the level of misconduct. Rather we find that the Standards Committee has demonstrated Ms King to be negligent of incompetent, in her professional capacity, to such a degree as to reflect on her fitness to practise or as to bring her profession into disrepute.

[35] Charge 3 relates to her conduct in the course of the OMI, during which she was recalcitrant and seemingly unable to respond properly to requests for information, properly made by the Standards Committee. Despite being given extensions of time,

7 At the October hearing she told us she had 20 files.

Ms King clearly breached her obligation under r 10.14 to respond to enquires from the Law Society “respectfully and in a timely manner”.

[36] In her application for renewal of her practising certificate in September 2024, Ms King described herself in relation to the complaint as “paralysed with fear”. Because of an earlier complaint which had been upheld against her and which also involved the subject matter of the COVID-19 vaccine, her ability to provide any response was hampered. Ms King says “I felt overwhelmed. When I started reading the current complaint some time ago the darkness of that period descended on me again. I can’t afford to be emotionally triggered to that degree at present.”

[37] As a result, Ms King failed to make any submissions in respect of the OMI, and this led to Charge 3.

[38] Once again, while we do not view Ms King’s conduct as wilful or indeed reckless but rather arising out of her ill health and lack of support, we do consider that this also reaches the standard of negligence under s 241(c), but that this is a situation where the practitioner needs support, and some time to regain her health and order her affairs.

[39] These concerns informed our decision on proper penalty for this practitioner.

Penalty

[40] We accept Ms Town’s submission that the conduct of most concern is the H complaint in which we have found misconduct. Ms Town submitted “it involved a protracted failure to conduct litigation in a professional manner that accorded with Ms King’s fiduciary duties and her obligations as an officer of the court”. We agree.

[41] In respect of Charges 1, 2 and 3, Ms Town accurately submitted that the picture painted was one of a practitioner “struggling with the demands of practice to the detriment of her clients”.

[42] Ms Town points to an aggravating factor being a previous finding of unsatisfactory conduct from 2022; but that this was at the lower end of the scale.

[43] In relation to mitigation, it is acknowledged by the Standards Committee that

her ongoing sinus issues (although absent medical verification) have certainly impacted on her ability to manage her practice.

[44] We bear in mind the principle of least restrictive intervention.8

[45] We also, in this instance, consider that a rehabilitative approach to the problems faced and caused by Ms King is a proper one.

[46] We consider that she would benefit from an absence from practice for some months to recover her health, make plans for her future and overcome whatever obstacles there are in her life that prevent her from engaging with her professional body.

[47] In terms of our obligation to protect the public and uphold the reputation of the profession, we consider that some restriction must be placed on Ms King’s ability to practise in future. We consider that she would benefit from the guidance and collegiality of working in a firm where she could observe and adopt good systems for client management and support.

[48] We also consider Ms King requires a high level of supervision with her work and will benefit from acting as a junior in litigation with a senior lawyer.

[49] Were Ms King to seek to practise on her own account again, we would be assisted by evidence of her having served as a junior with two senior barristers of no less than seven years’ experience. As well as that, corroborated evidence to show that she has addressed the deficits outlined in the Cheer report will be necessary.

[50] Ms Town, for the Standards Committee, has sought an award of compensation under s 156(1)(d) for Mr H, in respect of the emotional harm suffered by him as a result of Ms King’s failures of him. As well as the humiliation involved, it seriously impacted Mr H’s strained financial circumstances. Ms King’s failure to obtain Mr H’s specific instructions on contentious matters caused him confusion and distress. We consider that, having regard to the authorities, in particular the Downing and Reith case,9 that an award of $4,000 would be proportionate.

8 Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] NZHC 1359; [2011] 3 NZLR 850 at [22].

9 Nelson Standards Committee v Downing and Reith [2022] NZLCDT 21.

[51] Ms King’s failure to engage in the disciplinary process increased costs in that two hearings were required to deal with what were relatively straightforward matters, and we do not consider that the profession ought to bear the burden of those costs.

[52] The above reasons support the orders made on 26 November as follows:

1. Ms King is suspended from practice as a barrister or solicitor, for a period of four months, beginning 28 November 2024. (pursuant ss 242(1)(e) and 244 of the Act).
   
2. Ms King is to pay compensation for emotional harm to the complainant, of

$4,000 (pursuant s 156(1)(d) of the Act).

3. Ms King is not to practise on her own account, whether in partnership or otherwise, pending further order of the Tribunal (pursuant s 242(1)(g) of the Act).
   
4. Ms King to pay the costs of Standards Committee in the amount of $6,380. (pursuant s 249 of the Act).
   
5. The New Zealand Law Society to pay the Tribunal costs. These costs are certified in the sum of $9,560. (pursuant s 257 of the Act).
   
6. Ms King to reimburse the New Zealand Law Society in full, for the Tribunal costs. These costs are certified in the sum of $9,560. (pursuant s 249 of the Act).
   

DATED at AUCKLAND this 18th day of December 2024

DF Clarkson Chairperson